For many first time business owners, there is often confusion when it comes to exactly what type of protection a business name can provide. There is even more confusion when this gets mixed up with trading names, domain names or trade marks. So, what exactly is a business name? And will having a business name prevent others from using it?
Business Name in Australia
Officially, a business name is the title which is used to conduct your business. In most cases, a business name needs to be registered. Some exceptions include sole traders or partnerships who use their own name to conduct business.
As part of the business name registration process, you do need to check for availability.
The Australian Securities and Investment Commission (ASIC) will assess whether the name, or something nearly identical to it, is already registered. They will also need to determine that it is not a name that may be offensive or misleading.
Although searches are made to ensure that you are not trading under a similar name as another business, ultimately your registration is simply a legal obligation required to ensure that the public are aware of who they are doing business with.
This means that:
- the business name is limited in the form of protection it can provide.
- It does not provide you with exclusive use of the name or ownership of the name.
- You may not be able to prevent other parties from using it.
Trade Mark
When it comes to the intellectual property of a name, the best way to claim ownership is through trade mark registration. Trade mark registration provides people and businesses with a legally enforceable right to exclusively use a business name. It provides intellectual property ownership, which means you can licence your business name or even sell it. It also provides you with the ability to enforce exclusive use of the name by commencing an action in trade mark infringement. Not every name will be eligible to be registered as a trade mark. All applications to register a trade mark must be lodged with IP Australia. IP Australia will examine the trade mark for eligibility to be registered.
For practicality, it would also be helpful to register your business name as a domain name if you plan to trade online or to use the internet to advertise or promote your services.
By registering your business name as a domain name, you will be able to have a unique electronic address. Australian business who possesses an Australian Company Number or Australian Business Number have the ability to buy domain names with the suffix .com.au or .net.au.
Conclusion
It is important for businesses to understand the difference between a business name and a trade mark. Although a business name needs to be registered and checked by ASIC, it is ultimately a legal obligation for people or companies seeking to conduct business. A trade mark is the best legal option to prevent other parties from using your business name.
If you need advice about your business name or registering a Trade Mark, we can help we are specialist intellectual property lawyers contact Lord Commercial Lawyers on (03) 9600 0162 or email us at info@lordlaw.com.au or fill out the form on this page.
About us
Lord Commercial Lawyers is a commercial law firm based in the Melbourne CBD. We work with businesses and individuals to help them achieve their legal and commercial goals.
